IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, GUWAHATI …aftrbghy.nic.in/judgement/OA...

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IN THE ARMED FORCES TRIBUNAL, REGIONAL BENCH, GUWAHATI

O.A. NO. 14 OF 2013

P R E S E N T

HON’BLE MR. JUSTICE H.N.SARMA, MEMBER (J)

HON’BLE CMDE MOHAN PHADKE (RETD.),MEMBER (A)

No.2887074W Havilder Rajesh Singh, Son of Sri Bangshidhari Singh 9th Battalion Rajputana Rifles C/o 99 APO ……..Appellant/Petitioner Mr. Ashim Chamuah, Legal Practitioner for Appellant/Petitioner -Versus-

1. The Union of India, Represented by the Secretary,

Ministry of Defence, DHQ, PO, New Delhi - 110001.

2. The Chief of Army Staff, Integrated HQ Of Ministry of Defence (Army), DHQ, PO, New Delhi-110011 ; 3. The Officer in Charge ( Records) Rajputana Rifles, Delhi Cantt, Pin-110011 ; 4. The Commanding Officer, 9th Battalion Rajputana Rifles, Pin- 912009, C/o 99, APO.

…….. Respondents

Mr.N. Deka, Ld. CGSC

Legal Practitioner for the Respondents.

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Date of Hearing : 16.09.2013 & 04.11.2013

Date of Judgment & Order : 25.11.2013

JUDGMENT & ORDER

( Cmde Mohan Phadke)

The Present Original Application 14 of 2013 is a

part of the 2nd round of the litigation between the applicant

No.2887074W Havildar Rajesh Singh of the 9th Rajputana

Rifles and the Union of India. Earlier O.A. No.282/2012 was

initially filed before the Armed Forces Tribunal, New Delhi

and subsequently transferred to Armed Forces Tribunal,

Guwahati for disposal. The said O.A. was disposed of vide

order dated 21.11.2012 with a direction to the respondents

to dispose of the statutory complaint of the applicant within

3 weeks of the passing of the order. The said statutory

complaint had, however, already been disposed of by the

Chief of the Army Staff (COS) vide his order dated 3rd

October, 2012 and was supposed to have been

communicated to the applicant Hav Rajesh Singh vide

communication at Annexure- A-11. The applicant has,

however, stated in para 1 of the O. A. that on transfer of the

earlier O.A. to AFT, Guwahati, the respondent authorities

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had submitted that they would consider the statutory

complaint and the same would be disposed of within a

short while. It was therefore that this Hon’ble Tribunal was

pleased to direct the respondent authorities to dispose of

the statutory complaint immediately. This was in the face

of the fact that the respondent authorities had already

disposed of the statutory complaint on 3rd October, 2012

by rejecting the claim of the applicant. The applicant

further submits that the said order dated 3rd October, 2012

was neither communicated to the applicant nor mentioned

before this Hon’ble Tribunal. It was also not disclosed in the

Counter Affidavit filed in the said TA/OA on 14/11/2012

and thus this tribunal was mislead into passing orders for

disposal of the statutory complaint. Aggrieved by the

rejection of his claim vide the order dated 3rd October, 2012

(Ann- 11), the applicant has filed the present O.A. being

OA. 14/2013 praying for quashing of (a) the order whereby

he was removed from the appointment of Company

Havildar Major (CHM) and (b) quashing of the assessment in

the confidential report for the year 2010 in its entirety on

the ground that it was highly biased and subjective, as

would appear from the records, and consequently to direct

the respondents to promote the applicant to the rank of

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Naib Subedar from the date when his immediate junior was

promoted with all consequential benefits of seniority and

back wages etc. The appellant has also prayed for the

quashing of the impugned order No. B/6003/909/RS/9

RAJ RIF/Inf-6(Pers) dated 3rd October, 2012 which is

appended to Ann-11 and by which the appellant’s statutory

complaint dated 27/5/2011 was rejected.

[2] In support of his case, the applicant has

submitted that he was enrolled in the Indian Army on

19/03/1989 and had served the Nation with utmost

dedication to duties, to the best of his ability and also to the

entire satisfaction of his superiors. During this period there

was no complaint/warning given to him. As a matter of fact

he had played an important role in the movement of the

company from the field from Akhnoor to the peace location

( at Ferzepur Cantt). He was finally appointed as Company

Havildar Major (CHM in short) in Delta Company in the

month of December, 2008 vide Part II order published on

27/12/2008. Whilst he was holding this appointment the

company was deployed in the field area and manning posts

at the LOC. The applicant performed his duties to the entire

satisfaction of his Company Commander not only then, but

also after the company had moved to the peace area and

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thereafter till May, 2010. He had appeared for and passed

the promotion cadre course for Hav to Nb Sub which was

held from 14/12/2009 to 24/01/2010 as notified vide Part-

I order dated 08/05/2010 ( Annexure-A-1). The applicant,

had thus, become eligible for promotion to the rank of Naib

Subedar as the vacancy was due in December, 2010. This

promotion was, however, wrongly denied to the applicant

without any valid reason on the basis of some flimsy

grounds.

[3] The applicant refers to two incidents that took

place in June, 2010 which resulted in the issuing of a

show-cause notice/warning to him despite his clarification

about the situation. The incidents were as follows :-

(a) In June, 2010 he received order from the then Subedar

Adjutant (SA) Subedar Jai Singh of the unit to detail a guard in a

particular post. The applicant passed this order to the Platoon

Havildar/ Guard Commander who was next in chain of command.

On the next day, however, he was informed by the Subedar

Adjutant that the guard did not report for duty in time. On enquiry

about the matter from the concerned Duty NCO, he was told that

the guard detailed for duty was participating in the Rocket

Launcher Competition and had therefore reported for duty slightly

late. The applicant met the then Adjutant Capt Jaipal Singh and

informed him about the actual fact. He told him that the guard was

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not absent from duty, but was late in reporting on account of his

participation in the Rocket Launcher Competition and also as he

was at that time under the control of the Training

Officer/JCO/Detachment Commander.

(b) On 26/06/2010 the Sub Adjutant informed him in the

evening that one of the boys who was required for blood donation

in the morning did not report for the same. This came as a surprise

to the applicant because, on 26th morning he had been detailed for

ammunition withdrawal exercise conducted under the aegis of the

Division HQ and he was consequently not aware of the

requirement to send a Jawan for such blood donation. Since he

had not received any such direction, he could not have complied

therewith. The applicant once again immediately clarified this

issue to the Sub Adjutant and also sent one Nk Manoj Kumar of

his company for blood donation, but Nk Manoj Kumar was sent

back by the Sub Adjutant. This issue was also clarified to the then

Adjutant and the then company Commander by the applicant in

person. Despite the position being clarified, a show-cause

notice/warning was however issued by the Adjutant to the

applicant on 30/06/2010 on the said two issues concerning guard

not reporting for duty in time and person not being detailed from

the unit for blood donation. The applicant met the Adjutant and

explained the position and was given the impression that no formal

reply was required. He accordingly did not submit any reply to the

said show-cause notice. To his utter surprise, however, the

applicant received another show-cause notice dated 12/7/2010, this

time from his Company Commander Major KTM Singha alleging

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that he did not reply to the show-cause notice dated 30/06/2010 of

the Adjutant. It was also alleged that he had violated the orders

intentionally. He was then directed to forward his reply to the

show-cause notice dated 30/06/2010 and 15/07/2010. The

applicant once again approached the Battalion HQ and informed

the new Adjutant about the position and was given an impression

that it was not required for the applicant to submit any formal

reply. The applicant accordingly considered the matter closed as

being of a minor nature. To his surprise, however, he received a

letter dated 31/08/2010 (Annexure-A-5) from the Company

Commander alleging non-submission of reply to the show-cause

notice. This was not correct as the applicant had submitted his

reply and same was accepted by the company commander. By the

said warning letter of the Company Commander the applicant was

removed from the appointment of CHM which, as per the

applicant, was totally unwarranted and legally incorrect. The

applicant got the impression that attempts were being made to

deprive him of his promotion to the rank of Naib Subedar and the

consequential service benefits.

[4] In the past 22 years of service the applicant

had never been warned/counselled by any of his superior

officers for either personal or professional reasons. Now,

when the applicant had passed the Havilder to Naib

Subedar Cadre and was not only eligible but also fit in all

respects to be promoted, he was sought to be arbitrarily

denied the promotion for the aforesaid reasons.

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[5] The applicant subsequently learnt that the

papers for promotion to the rank of Nb Subedar in respect

of a person junior to him had been submitted to

respondent No. 3. When the applicant sought information

under RTI Act, 2005 on this issue, he was informed by

the Company Commander vide letter dated 18/03/2011

(Annexure-A-7) that he did not fulfill the ACR criteria for

promotion to the rank of Nb Subedar and also that he had

been informed about this. The applicant contends that

there was no communication to the applicant about any

below benchmark assessment by any of the reporting

officers which rendered him ineligible in the ACR criteria.

In response to his RTI application, the applicant was

informed by respondent No. 3 vide letter dated

15/04/2011 ( Annexure-A-8) that promotion proposal in

respect of one Havildar Bhanwar Singh ( who was junior to

the applicant) had been received by them. The applicant

submitted a representation dated 23/03/2011 to the GOC

HQ 7 Infantry Division, but this representation was

rejected vide letter dated 21/04/2011 without due

application of mind. Angered by his representation to the

GOC, the commanding officer of the applicant served upon

him a show-cause notice dated 05/05/2011 asking him as

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to why he should not be discharged from the service for

his injuries despite the fact that it was known that he was

in permanent low medical category for the injury which

had been categorized as Battle Casualty. Aggrieved by this

action, the applicant submitted a statutory complaint

dated 27/05/2011 ( Annexure-A-9) and left with no

alternative, the applicant filed O.A 282/2012 before the

AFT at New Delhi, but the same was transferred to AFT,

Guwahati Bench and registered as TA No.03/2012. By

order dated 21/11/2012 ( Annexure-A-10), this Tribunal

was pleased to direct the respondents to dispose of the

statutory complaint immediately. The respondents had in

the said TA filed a Counter Affidavit in the matter but not

disclosed the fact that the statutory complaint had in fact

already been disposed of vide order dated 13/10/2012

(Annexure-A-11). This statement is correct as it is seen

from para 29 of the affidavit in opposition filed by the

respondents on 16/11/2012 that the respondents have

stated “………. the deponent bets to state that the Statutory Complaint submitted

by the Applicant, is pending with the IHQ of MoD (Army) vide para 12. The unit

had sent a reminder to them by a signal on 19.09.2012.”

[6] In the grounds for relief, the applicant has

contended that wrongful denial of promotion despite his

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being fully qualified, amounted to violation of his

constitutional rights as enshrined in Articles 14 and 15 of

the Constitution of India. The applicant has also

contended that the show-cause notice can, as per settled

law of the land, be issued only by the authority competent

to initiate action. In the present case, however, the show-

cause notice was issued by the Company Commander,

even though respondent No. 4 (Commanding Officer, 9th

Bat. RAJPUTANA RIFLES) was the competent authority for

the purpose of removing the applicant from the

appointment of CHM. The removal from appointment was

therefore illegal and unsustainable. The applicant further

contended that as denial of promotion amounted to a

punishment it could not have been inflicted without

following the due procedure of law. In this case, however,

no such procedure was followed. The applicant next

contended that the adverse remark in the ACR which

blocked his promotion was never communicated to him,

although it has been falsely stated by the respondents that

the applicant had refused to accept information in that

regard. Denial of promotion on flimsy grounds

notwithstanding the blemish-less past service and his

participation in various operations which had resulted in

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superficial Splinter Injury during 2002 in “Operation

Parakram” and rendered him a ‘Battle Casualty’ was

attributable to malafides on the part of the respondents.

More so, as he had fulfilled all requisite criteria for

promotion to the rank of Naib Subedar. This was most

unfortunate particularly as he had partially lost his one

leg due to the injuries suffered in battle (battle casualty)

during operation Parakram, while he was defending the

Indian territory from external aggression.

[7] In his rejoinder to the Counter Affidavit, the

applicant has further reiterated his statement in para 4

(E) of the O.A. wherein he had stated that he had on

receipt of orders from the Subedar Adjutant about the

detailment of a person for duty at a particular post

immediately conveyed the said order to the concerned

platoon Havildar/Guard Commander in the presence of

other platoon Havilders. He had also thereafter explained

the correct position to the Adjutant Capt. Jaipal Singh

after he was informed by the Subedar Adjutant that the

person detailed for guard had not reported in duty in time.

His enquiry had shown that the guard was in fact

detailed, but had reported slightly late as the person

detailed was participating in Rocket Launcher ( RL)

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competition. This information was given to him by the

duty NCO and was duly communicated to the Adjutant

Capt Jaipal. To this statement, the applicant has further

added that there was no spare man power to detail as all

the jawans were engaged in RL training. Similarly, whilst

reiterating his statement that he was not aware about the

detailing of a person for blood donation, the applicant has

stated that “he was in ammunition withdrawal exercise

(AWE) with the permission and command of the Battalion

Subedar Adjutant. The applicant then contested the

statement of Lance Naik Amrit Singh and Rifleman

Prakash Singh on the premises that they had been advised

to say so and also that the statements were false and

fabricated. He was actually not present in the company

after 10.30 hours on 26/06/2010 as he had gone for

ammunition withdrawal exercise (AWE). Further the

statement of the respondent authorities that the Quarter

Masters only participated in the AWE is not correct. The

applicant contended that CHMs are also detailed in the

said AWE and he was sent for AWE on the verbal

command of Subedar Adjutant Jai Singh. With reference

to the show cause notice the applicant has submitted that

all the 3 notices dated 30/06/2010, 12/07/2010 and

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31/08/2010 pertain to the same subject matter and he

had submitted his reply in response to the show cause

notice dated 12/09/2010.

[8] With reference to the disposal order dated

03/10/2012 of the statutory complaint, the applicant

stated that “the same was received by the battalion on

22/10/2010, however, the deponent got information on

21/12/2010.” In between the previous O.A pertaining to the

said subject was disposed by this Tribunal on

21/11/2012. Whilst stating that the respondents had

admitted the fact that his service career of 21 years up

to 2010 was without blemish and to the satisfaction of the

authorities and also that he was a brave soldier who had

participated in various operations/war, while in field

areas or operation. The applicant submits that such a

brave and obedient soldier cannot become so bad within

3 months. The applicant finally submits that Major Kapil

Tuli was the Company Commander for the period 2008 to

2010, but his ACR was written by Major KTM Singha

which was not permissible in law.

[9] The respondents have on the other hand in

their affidavit in opposition dated 5/08/2013 denied the

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claim of the applicant. Whilst denying the statement of

the applicant, the respondents have fairly acknowledged

in para 4, the fact that Havildar Rajesh Singh had in his

22 years of service in Raj-Rifles served well with the unit

in its peace and field tenures and had also passed

Havildar to Naib Subedar promotion cadre. This

statement as in para 4 of the affidavit in reply being

important, is re-produced below :-

“4. BACKGROUND. No. 2887074 W Hav

Rajesh Singh a Non Commissioned Officer (NCO), and was enrolled in

RAJPUTANA RIFLES ( RAJ RIF) ON 19TH March 1989. He has served

for 22 years in RAJ RIF and has served well with unit in its peace and

field tenures, which as such is a barometer of the established soldierly

qualities in the individual. However, due to the environmental/social

changes in recent years, which has also affected the organization, the

increased awareness of troops, has manifested itself in few aberration of

high headedness and anarchist attitude. The individual in the instant case

despite being a good soldier is a burning example of the same, who has

been getting his dues from time to time. He was appointed CHM of ‘D’

company in December 2008. He has also passed Hav to Nb Sub cadre on

24th January 2010.”

[10] The respondents have, however, brought out

their version of the two incidents that took place in the

year 2010. It has been contended that Sub Adjutant (SA)

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of the unit had passed an order for detailment of guard at

a particular post to the applicant who was then

performing the duty of CHM of Delta Company, but the

applicant, Havildar Rajesh Singh, had neither detailed

the requisite man power specifically for the duty nor

consulted any of his superiors which resulted in the

absence of the concerned guard. Further, while rebutting

the applicant’s contention that he had detailed the

required person through duty NCO, but the detailed

person had reported late as he was participating in the R

L completion, the respondents have submitted that the

guard was not detailed timely by him. Moreover, RL team

members were excused from any detailment for guard

duty during the training and competition with a view to

enable them to attend the extra training period and also

ensuring adequate rest and therefore detailment from RL

firing team was in any case contrary to the existing

orders of the unit.

[11] With reference to the 2nd incident dated

26.6.2010 wherein the applicant was ordered by the then

Sub Adj. of the unit to send one person of ‘A positive’

blood group to 159 General Hospital for blood donation on

26.6.2010, the respondents have once again categorically

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stated that Hav Rajesh Singh did not detail anyone from

his company for the said duty. After realizing his mistake

on 26.6.2010, Hav Rajesh Singh accepted his mistake and

took corrective action in order to cover up for the said

mistake and on his own boarded one of the vehicles which

was going for the ammunition withdrawal exercise, which

exercise was purely within the purview of the

Quartermasters and none of the CHMs was detailed for it.

The respondents have attributed this action of the

applicant to lack of moral courage.

[12] Similarly, when the applicant was called by

Sub Jaipal Singh, the then Adjutant of the Battalion

through Rifleman Amrit Singh, the applicant informed

Rifleman Amrit Singh “ to go and convey to the SA that he

was unable to convey the order to Hav Rajesh as he could

not find him.” Rifleman Amrit Singh, however, reported

the matter truthfully to the SA. The SA had then sent

another messenger to Hav Rajesh through Rfn Prakash,

but Hav Rajesh once again repeated the previous act and

conveyed the same message. These actions, the

respondents have contended, demonstrate lack of respect

for the orders of authorities besides misrepresentation of

the facts.

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[13] On the question of the issuing of the warning

dated 30/06/2010 by the adjutant, the respondents have

contended that the applicant did not respond to the said

warning and therefore Maj KTM Singha, who was the

Company Commander issued him with a show cause

notice dated 12/07/2010 calling upon him to reply by

15/07/2010. Hav Rajesh Singh, however, did not

consider it appropriate to respond to the said show-cause

notice. When asked to clarify the individual did not

display any respect for the orders of the company

Commander and the Adjutant of the Battalion and

therefore the Company Commander had no other option,

but to issue another show cause notice on 31/08/2010.

The applicant, however, refused to sign the

acknowledgement of this show-cause notice. The

applicant finally responded on 12/9/2010. The applicant

has falsely stated in the OA that he was not told about

the violation. This was not true as the Adjutant had

specifically stated to him the reasons for issuing the

warning letter and given details of such violation. In this

context, para 6 (c ) of the affidavit in reply brings out the

necessary sequence. It reads as follows :-

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“( c ) Contrary to the statement of individual, Hav Rajesh

did not forward any reply to the initial warning dated 30-06-2010 and 12-07-

2010 respectively. The individual was asked by the Coy Cdr to explain the

reasons for non-implementations of verbal orders passed by the Adjutant of the

Bn. He was asked to give him reply to SCN by 15/7/2010. However, the

individual did not consider it appropriate to respond to it. Subsequently, the

individual was asked once again by the Coy Cdr vide letter No. A/2/5 dated 31st

August 2010 to forward his response to the SCN. Then Hav Rajesh had

responded to the SCN on 12-09-2010. Therefore, it is evident that the Applicant

was afforded ample opportunity to explain his reasons, but he did not consider it

appropriate to respond to the Warning/SCN issued by the Bn Adjutant as well as

by the Coy Cdr and had to be reminded again on 31-08-2010.”

[14] With reference to the removal of the applicant

from appointment of CHM, the respondents have brought

out that the appointment of Subedar Adjutant, Subedar

Quartermasters, Company Havildar Major and Company

Quartermasters etc. are made to facilitate the smooth

functioning of the unit. Necessary changes in these

appointments are carried out by the respective

Commander with the approval of Commanding Officer.

Since the responsibilities for the smooth functioning of

the sub units and the unit is that of the officer

commanding. He makes changes in the said

appointments keeping in mind the unit requirement and

performance of the individuals. This falls within the

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administrative purview of a unit. The applicant in this

case was found wanting in the performance of his duty

as CHM of Delta Company, the Company Commander had

obtained approval of the Commanding Officer for change

in the appointment of CHM at Delta Company in August,

2010 and the same was reflected in BRO Part I register

and approved by the Officiating Commanding Officer. In

the result, Havildar Triloki Nath Singh was appointed as

officiating CHM of “D” company and on completing the

probation period of 3 months, his appointment as CHM in

place of Hav Rajesh Singh was published in BRO of 13th

November, 2011. Late publication was due to this reason

and had no bearing on the actual performance of the

duties of the individuals as CHM. We are in agreement

with the above submission of the respondents as

appointment of CHM is not a promotion. It is an

administrative appointment made in the interest of the

company. That being so, the discretion to make such an

appointment lies with the concerned authorities.

[15] The respondents have concluded this point by

saying that although as CHM the applicant was expected

to set an example of initiative and junior leadership

including willing acceptance of additional responsibilities

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for other to emulate, he remained focussed on merely

passing orders to the troops without making requisite

efforts to ensure their implementation. This slackness on

his part was evident in various activities of the company

and the Battalion.

[16] With reference to the ACR assessment of the

applicant, the respondents have contended that his

performance for the year 2010 was assessed as “average”

and “not recommended”, for promotion, as the individual

had “displayed shirking of responsibilities/duties on a number of

occasions, during period of review, which has already been highlighted

by the Initiating Officer in his detailed reasons/justification.” During

frequent interactions carried out by the Commanding

Officer with the Senior JCOs and the CHMs of the

company to monitor their operation/ training/sports and

administrative tasking, Hav Rajesh Singh had shown lack

of initiative, enthusiasm and commitment to the sub

unit/unit. Lack of initiative on the part of the individual

was evident from various activities of the company and

the Battalion. During his appointment there have been a

number of incidents/cases involving loss of identity cards,

individuals of the company not reporting for duty or

medical re-categorization Board in time. His lack of

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enthusiasm resulted in inordinate delay in execution of

tasks as well as in finalization of cases. He was

accordingly appropriately assessed as ‘average’ in the

ACR.

[17] On the question of non promotion of the

individual to the rank of Naib Subedar, the respondents

have submitted that promotion policy for promotion to the

rank of Naib Subedar is formulated at the Regimental

level by the Records RAJ RIF Delhi Cantt. The applicant

was considered for promotion, but did not meet the

requisite QR for promotion due to lacking of requisite

criteria. The individual was informed about his being

graded as “Average” and “Not recommended” for

promotion in 2010 due to a drop in his performance. But

the individual had refused to sign the acknowledgement of

this information in presence of Sub ( now Sub Major)

Chenva Bhika Bhai Shamal Bhai and Sub Biyani Prakash

Mahesh Bhai. Besides, the individual had also sought for

a special interview with the Commanding Officer for

denial of promotion. He was interviewed by the C.O. and

informed about his lacking in the ACR criteria for

promotion to the rank of Nb Subedar. The statutory

complaint filed by the applicant as on 31/05/2011 was

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disposed of vide IHQ of MOD letter NO.

B/6003/900/RS/9 RAJ RIF/Inf-6(pers) dt. 03-10-2012

and was received on 22/10/2012 in the Battalion. The

individual was personally informed by the Commanding

Officer and the officiating Head Clerk and was further

informed vide 9 RAJ RIF letter NO.A/2887074/RS dt.

25/10/2012 whereby a copy of the IHQ letter was

forwarded. The individual was, however, on leave at that

time. On his arrival he initially refused to accept the same

and finally signed the receipt only on 21/12/2012. The

respondents have claimed in para 15 of the affidavit in

reply that the applicant was in receipt of the information

regarding disposal of his statutory complaint and

regarding the disposal order of his statutory complaint on

around 23/10/2012 and therefore there was no

misleading of the Hon’ble Tribunal by the respondent

authorities.

[18] We have heard Mr. Ashim Chamuah, learned

counsel for the appellant and Mr. N. Deka, learned

Central Government Standing Counsel appearing for the

respondents.

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[19] It is seen from the pleadings on record that it

is not in dispute that the applicant who was enrolled in

the Indian Army in 9th RAJ RIF on 19.3.1989 had put in

over 21 years of service and was holding the appointment

of Company Havildar Major (CHM) in the ‘Delta’ Company

since 27/12/2008. It is also an admitted fact that Hav

Rajesh Singh had served the Army well in various peace

and field appointments and was considered to be a good

soldier. Further, he had also passed Havildar to Naib

Subedar promotion cadre on 24/01/2010 and was thus

qualified for promotion to the rank of Naib Subedar.

Something, however, went wrong in the year 2010 as is

reflected in the two incidents as referred to in the

pleadings by the applicant and accepted by the

respondents. The incidents are not in dispute, but facts

and circumstances surrounding the incidents have been

disputed. As discussed earlier, the first incident took

place in June, 2010 and related to the detailing of guard

for manning certain posts despite his being instructed to

do so. As per the applicant, he had conveyed the order of

Subedar Jaipal Singh, Subedar Adjutant to the concerned

platoon Havildar/Group Commander in presence of

other platoon Havildars. The applicant also states that on

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his being questioned on this issue, he enquired and came

to know that the guard was not absent but had reported

slightly late on the ground that the person who was

detailed was participating in Rocket Launching

competition. The applicant claimed that he has explained

this position to the Adjutant and had therefore assumed

that everything was settled. Similarly, with reference to

the second incident, the allegation against the applicant

was that he had been asked to detail a person with “A”

positive blood group to meet some medical emergency, but

had once again failed as no one reported for blood

donation. The applicant has pleaded that he was not

aware of the requirement as he was in ammunition

withdrawal exercise. Subsequently, however, on coming to

know about the requirement, he had detailed one Naik

Manoj Singh from his company for blood donation, but he

was sent back. This issue was also explained to the

Adjutant. Whilst the above facts may be in dispute, it is

not in dispute that the applicant was issued with a

warning letter ( Annexure-A-2) asking him to improve his

conduct in executing orders. The letter also mentioned

that on his failing to do so, he could be removed from his

appointment of Company Havildar Major ( CHM) of Delta

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company and strict disciplinary proceedings would be

initiated against him and it would also get reflected in his

ACR. This warning letter was followed up by a show-cause

notice dated 12/07/2010 ( Annexure-A-3) which referred

to the Adjutant’s letter dated 30/06/2010 ( Annexure-A-2)

and alleged that perusal of his letter had reflected that he

had intentionally disobeyed the orders twice. The show-

cause notice further emphasized the fact that company

Havildar Major was an important link between the

Company and the Battalion and if the link was not

maintained it can cause an impediment in the functioning

of the company. The show-cause notice dated

12/07/2010, signed by Major KTM Singha for

commander, ‘D’ Company had in the last para called upon

the applicant, that “ I wish that you intimate to me the reasons for

the allegations as mentioned in the letter issued by the Adjutant latest

by Saturday, 15 Jul 2010.” The letter of the individual which

was referred to in the aforesaid show-cause notice and

which was in response to the earlier warning letter is at

Annexure-A-4. It is extracted below :-

“1. With reference to your warning letter S/2/5 dated 30 Jun 2010.

2. In respect of the observation as contained Para (a) and

(b) of your letter, on 26 Jun 2010 I was in Ammunition Withdrawal

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Exercise and the orderly NCO was in RL Firing Competition because of

which the orders could not be implemented which I sincerely regret.

3. In future, the orders will not be disobeyed.”

[20] By another warning letter dated

31/08/2010 ( Annexure-A-5), wherein the applicant was

informed that he had not submitted any reply to the

show-cause notice dated 12/07/2010 that was issued to

him by the Company Commander. It was further alleged

that he had not shown any improvement in his

performance despite the earlier warning by the Adjutant.

The ‘warning letter’ finally informed the applicant Hav

Rajesh Singh that as a result of the above, he was

removed from appointment of CHM and drop in

performance would also be reflected in the ACR of the

applicant. The individual was finally informed vide

communication dated 31/10/2010, which was once again

entitled “Warning”, that since he had not shown the

desired improvement in fulfilling his duties and

responsibilities, he was being graded as ‘Average’ and ‘Not

recommended’ for promotion in the Confidential Report

for the year 2010. The communication further refers that

the applicant Hav Rajesh Singh has refused to sign the

same in the presence of two witnesses, viz., Chenva Bhika

Bhai Shamal Bhai and Sub Biyani Prakash Mahesh Bhai.

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This communication was duly replied by the applicant

vide his communication dated 12/09/2010 as accepted

by the respondents in para 6 (c ) of their affidavit in

opposition filed on 16/11/2012. Regrettably, however,

this communication dated 12/09/2010 has not been

placed on record either by the applicant or by the

respondents. In any case, mere communication of

intention to grade the applicant ‘Average’ and ‘Not

recommended’ for promotion in the Confidential Report

for the year 2010 which was to be rendered as on 30th

September, 2010 was in violation of the laid down rules

which required adequate notice of atleast 60 days along

with counselling, guidance and even change of

environment.

[21] After the aforesaid incidents, the applicant

wrote a letter dated 09/02/2011 (Annexure-A-6) to the

officiating Caste Commander (Gujarati) RAJ RIF 56 APO

wherein he had mentioned that he had served in the Army

for 22 years and had passed the Havildar to Naib Subedar

promotion cadre conducted on 14/12/2009 and

concluded on 24/01/2010 and had also performed his

duties with loyalty and dedication but had been told that

his promotion which was now due had been withheld. The

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applicant then enquired about the reason for withholding

his promotion at the earliest. In response thereto, he was

informed by the officiating Caste Commander (Gujarati)

Major KTM Singha that :-

“1. With reference to the application dated 09 Mar 2011 of No

2887074 W Hav Rajesh Singh.

2. The Gujarati Caste Commander was on Army Course wef 17

Jan 2011 to 12 Feb 2011 and was on duty wef 15 Feb 2011. You

No.2887074W Hav Rajesh Singh were on 30 days Annual Leave

from 11 Feb 2011 to 12 Mar 2011.

3. You were not fulfilling the ACR criteria as prescribed by

Records RAJ RIF, Delhi Cantt for promotion from Hav to the rank

Nb Sub and it is for this reason that you were held not entitled for

such promotion to the rank of Nb Sub. In this regard, you have been

informed earlier officially as well.”

[22] By letter dated 15/04/2011 the applicant

was further informed with reference to his application

under RTI Act that :-

“2. Promotion proposal in respect of No 2887558W Hav Bhanwar

Singh who is junior to you has been received from 9 RAJ RIF vide

their letter No. A/115/2/ dated 08 Mar 2011 and the same has been

cleared on 08 Apr 2011 by this office.”

[23] What emerges, from the above, is that the

net result of the two incidents discussed above, which

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were said to have taken place between June, 2010 to

August, 2010, was the rendition of an adverse ACR upon

the individual and denial of promotion to him.

Considering the grave implications that the action of the

respondents have had on the service career of the

individual, it would be necessary to examine the

validity/legal sustainability of the said action.

[24] Considering the admitted fact that the

applicant had had a good service record for a period of

almost 22 years, action on the part of the respondents

with reference to the aforesaid two incidents appears, on

the face of it, to be harsh. More so, as there is no other

allegation against the applicant even in the year 2010. It is

therefore, apparent that rendering of adverse ACRs and

non promotion of the applicant, who was otherwise

qualified for promotion to the rank of Nb Sub was solely

based on the two incidents that took place between June

to August, 2010. It would therefore be of utmost

importance to examine the adverse ACR in the very first

instance. On doing so, we find that the adverse ACR was

issued in violation of the existing norms. It would be

relevant in this context to refer to paras 32 to 37 of Army

Order which deals with Confidential Reports :- JCOs and

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NCOs. Relevant extracts of the said Army Order are re-

produced below :-

“32. Before an ‘Adverse Report’ on a JCO/NCO, is initiated,

he will be suitably informed, in writing, of his shortcomings well in

advance and will be counseled appropriately. The counseling letter(s)

will clearly mention that the same is being issued to him with the

intention of initiating an adverse report on him. Copy of this letter will

be endorsed to the concerned OIC Records for keeping the same with the

CR dossier of the concerned Ratee. A period of minimum 60 days will be

given to such Ratee to show improvement. He will be given fair

opportunity and due guidance to show the desired improvement.

33. The following points will be kept in mind while placing a

JCO/NCO on adverse report :-

(a) Justice and fair play are ensured in all cases and at all

times including change of environment i.e. placing the Ratee under

another IO. A clear period of 90 days will be given to the individual (

Ratee) which will exclude the date of placement of the Ratee under

another IO and the due date of initiation of such CRs after 90 days.

(b) Action whether to place a JCO/NCO on an Adverse Report

or not is taken only after administering suitable warning and giving him

due guidance and adequate opportunity and time ( minimum 60 days) to

show desired improvement.

(c ) The performance of such JCO/NCO is watched closely.

34. A Ratee placed on Adverse Report will not be sent on leave

( except on extreme Compassionate grounds on approval of the RO,

temporary duty, attachment or a course of instructions. The period of 60

days warning to show improvement will be extended by the period of

leave, if granted, to the Ratee. If the JCO/NCO shows desired

improvement, he will not be placed on Adverse Report. However, if he

does not show improvement, he may be placed on Adverse Report on

expiry of a clear and minimum period of 60 days (excluding the date on

which he was administered the warning and the date on which he is

finally placed on Adverse Report.)

35. It must be very clearly understood that the Adverse Report

is a very important document with far reaching consequences on the

career of a JCO/NCO and do also have legal implications. It requires

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utmost care on the part of the Reporting Officer(s) to ensure that the

assessment is objective in content, realistic to the context and free from

bias and subjectivity while rendering such reports. With a view to give a

fair opportunity to the individual, he will be posted under another IO, for

a review report, immediately on receipt of adverse report, by the RO.

36. A Review Report will be initiated after a Ratee has been on

the adverse report for a period of 90 days or more. It will be initiated by

the IO, other than the IO who had put the Ratee on adverse report, after

completion of 90 days physical service under him ( new IO).

37. When a Ratee is placed on an adverse report, his

environment and the IO will be changed to give a fair opportunity to the

Ratee to show the desired improvement. On completion of 90 days

physical under the new IO, a review report will be rendered on the Ratee

by the new IO. Any CR due within the warning period of 60 days and

period of adverse report will not be initiated.”

[25] When we examine the present case in the light

of the aforesaid orders we find that although the

respondents have vide communication dated 31/10/2010

(Annexure R-3) informed the individual that he was being

graded ‘Average” and ‘Not Recommended” for promotion,

there was no opportunity given to the applicant to explain

his position or to improve as the ACR in question, which

was for the period October, 2009 to September, 2010 was

apparently issued immediately thereafter. Army orders as

extracted above clearly stipulate that the individual should

not only be suitably informed in writing of his shortcomings

well in advance, but he should also be counselled

appropriately. The counselling letter is also required to

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clearly mention that the same was being issued with the

intention of initiating adverse report on him. From the date

of issuing this letter a minimum period of 60 days is

required to be given to the Ratee to show improvement and,

in the interim, the individual is required to be given fair

opportunity and necessary guidance to show the desired

improvement. There is nothing on record to show that this

requirement as laid down in para 32 of the aforesaid Army

Order was duly complied with. Although the individual was

issued a warning letter by the Adjutant, the issue was, as

per the applicant, closed after he had explained the entire

position. The same has been said about the show cause

notice dated 12/7/2010. Here again, as per the contention

of the applicant he had satisfied the authorities by

explaining the correct position and no further action was

required. These communications can therefore not be taken

as notices for the adverse ACR. Similarly, the

communication dated 31/08/2010 (annexure A-5) was

replied by the applicant vide his letter dated 12/09/2010 as

accepted by the Respondents in para 6 ( c ) of the Counter

Affidavit. This letter dated 12/09/2010 has, however, not

been placed on record either by the applicant or by the

Respondents. In any case, just informing the individual on

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31/10/2010 that he was being graded ‘average’ and ‘not

recommended’ for promotion, will evidently not meet the

legal requirement of para 32 of the Army Order regarding

counseling/ notice etc. The rules prescribed in paras 32 to

37 of the aforesaid Army Order were quite clearly violated,

inasmuch as, there was neither any change of environment

provided to the individual to improve nor was any notice as

required given. Had this been done, bias/prejudice, if any,

could have been ruled out. Para 33 of the Army Order also

require a clear period of 90 days. It is excluding the date of

placement of the Ratee under another IO and the due date

of initiation of such CRs. Similarly, para 33 (b) further

requires such action to be taken only after a minimum

period of 60 days after warning /guidance have been given

to the individual to show improvement. In the present case,

no such warning can be stated to have been given, because

as per the applicant, he had on more than one occasions

explained the position to his superiors. Further, as per him

he had also thought that the matter had been settled. In the

above circumstances, where there was a clear

misunderstanding/communication gap between the

applicant and his immediate superior, the least that could

have been done was to move the individual to another place

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with a view to give him a change of environment and an

opportunity to improve. This was clearly not done and

instead, his ACR dropped without due notice. The issuance

of show cause notice was all the more necessary as, barring

these two incidents, the record of the applicant was

admittedly good. The respondents have also not specifically

brought out anything with reference to the applicant’s

conduct during the remaining period of the ACR from

October, 09 till June, 2010 as the incidents in question had

taken place only between June-August, 2010. This gives

rise to the presumption that the incidents were more as a

result of some misunderstanding or communication gap

than any deliberate act of misconduct. Considering these

aspects the applicant should have been given a change of

environment and an opportunity to improve. This was

clearly not done and the ACR dropped without due notice in

violation of the existing orders.

[26] Para 35 of the aforesaid Army Order

emphasizes the importance of Adverse Report and the far

reaching consequence that it has on the career of a

JCO/NCO as also the legal implication and the

responsibilities of the Reporting Officer to ensure that the

assessment is objective in content, realistic to the context

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and free from bias and subjectivity while rendering such

report. Para 35 further emphasizes that with a view to give

a clear opportunity to the individual he will be posted

under another IO, for review report, immediately on receipt

of the adverse report by the RO. Para 36 of the said Army

Order lays down that review report is to be initiated after a

Ratee has been on the adverse report for a period of 90

days or more by the IO, other than the IO who had put the

Ratee on adverse report. In the facts and circumstances, it

cannot be stated that the Reporting Officer endeavoured to

ensure that assessment is objective in content, realistic to

the context and free from bias and subjectivity as

contemplated in para 35 of the Army Order. Similarly, the

individual was also not posted under another I.O. in terms

of para 35 of the said Army Order. In the facts and

circumstances it cannot be stated that the reporting officer

endevoured to ensure that assessment is objective in

content, realistic to the context and free from bias and

subjectivity as contemplated in para 35 of the Army Order.

Similarly, the individual was also not posted under another

I.O. in terms of para 35 of the said Army Order.

[27] Para 37 directs change of environment of the

Ratee with a view to give him a clear opportunity to show

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the desired improvement. There is nothing on record to

suggest that the above rules were complied with.

[28] In the record produced before us there is a

letter No. A/28887074/RS dated 6th October, 2013 from

the Adj, 9 RAF RIF to HQ 51 Sub Area (AFT Cell), Pin-

908651, C/o 99 APO. This letter is extracted below as it

has an important bearing on the question of non promotion

of the applicant:-

“ CONFIDENTIAL

A/2887074/RS 9 RAJ RIF

Hw 51 Sub Area (AFT Cell) PIN-912009

Pin-908651 C/o 99 APO

C/o 99 APO 06 Oct 13

OA-14/2013 FILED BY NO 2887074 W HAV RAJESH SINGH VS UOI AND OTHERS IN AFT (RB) GUWAHATI

1. Pl refer to your HQ sig no A-2649 dt 01 Oct 13

2. It has already been intimated vide our letter no A/2887074/RS dt 20 Sep 13 that no

2887074W Hav Rajesh Singh was superseded for promotion to the rank of Nb Sub due to

lacking of ACR criteria. A copy of promotion proposal in respect of No 2887501F Hav

(Now Sub) Jalam Singh as junior to above NCO approved by Records RAF RIF vide

their Sig No A-0050 dt 04 Jan 2011 has also been fwd vide our above quoted letter for

your info and perusal.

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3. ACR grading in respect of No 2887074W Hav Rajesh Singh from the year 2006 to 2010

are as under :-

Ser Year Grading ‘R’ for promotion No IO RO IO RO

(a) 01 Oct 05 to 30 Sep 06 06 06 ‘R’ ‘R’

(b) 01 Oct 06 to 30 Sep 07 08 08 R’ ‘R’

(c) 01 Oct 07 to 30 Sep 08 07 07 ‘R’ ‘R’

(d) 01 Oct 08 to 30 Sep 09 08 08 ‘R’ ‘R’

(e) 01 Oct 09 to 30 Sep 10 04 04 ‘NR’ ‘NR’

(Sandeep Patnaik) Capt Adjut For CO ”

[29] Perusal of this letter shows that whereas

the individual was constantly graded between ‘06’ to ‘08’

by the IOs as well as R.Os during the period 1st October

05 to 30 Sep 09, his last grading during the period 1st

October 09 to 30 Sep 2010 suddenly dipped to numerical

figure ‘04’ and ‘04’ by the IO as well as by the RO.

Similarly both the IO as well as RO have ‘Not

recommended” the applicant for promotion. This was in

striking contrast to the fact that in all the previous

years the applicant was recommended for promotion and,

in the assessment of the preceding year, he was

graded ‘08’ by the IO and the RO, his numerical

assessment was dipped to’04’ ( by the IO and RO). This

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dip in assessment by ‘04’ digits was, on the very face of

it, abnormal. All the more so, as the respondents have

not alleged any other misconduct except the two

incidents cited above. These two incidents taken by

themselves are not of a nature that would call for non

promotion of the applicant. Assuming that the

respondents took a serious view of the alleged

misconduct, they could have conducted an enquiry to

establish the truth and thereafter taken action as

appropriate. This was regrettably not done. The

individual was warned and he has mentioned in response

that he had immediately explained the position and

satisfied the authorities concerned. Considering this, in

the interests of justice and fair play, an enquiry into the

matter was necessary and called for instead of an adverse

ACR as was done in the instant case. It is also relevant to

note that as per Para 26 of Army Order No. 01/2002/

MP, endorsement of SRO is required to be made in

certain exceptional circumstances. One of the exceptional

circumstances listed is “difference of more than three points in

figurative assessment or difference of more than two steps in the

overall grading by IO or RO.” In the present case, the letter

dated 06/10/2013 of 9 RAJ RIF shows that there was

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difference of ‘04’ in the figurative assessment as the I.O.

and the RO had both dipped the individual by an

assessment of ‘04’ in striking contrast to the grading ‘08’

previous assessment year for the period 1st October 08 to

30 Sept, 09. The record shows that the endorsement of

SRO was not recorded, as required.

[30] With reference to the ACR, the applicant has

further mentioned in para 8 of his affidavit in reply dated

09/09/2013 :-

“8. That the deponent begs to submit that major Kapil

Tuli was the Coy CDR for the period 2008 to 2010. But the

ACR is written by the Major KTM Singha which is not

permissible in law”.

[31] This statement of the applicant has not been

denied/countered. In view of the above discussion, we

hold that the adverse ACR rendered on the applicant

cannot be legally sustained. We accordingly allow the

prayer at Para 8 (b) and quash the Confidential Report

for the year 2010. We also direct that the applicant be

considered for promotion to the rank of Naib Subedar

without taking the aforesaid Confidential Report into

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consideration. We also hereby quash the impugned order

dated 03/10/2012 (Annexure-A-11) in so far as it rejects

in para 4 (a) the statutory complaint dated 27/05/2011

as the order in question has not taken into consideration

the fact that adverse ACR had been rendered in this case

without due notice and in violation of the existing rules

and orders. Para 4 (b) of the said impugned order which

allowed the applicant to continue in service on the

ground of his being ‘Battle Casualty’ is however upheld.

[32] Respondents are directed to complete

action with regard to considering the applicant for

promotion as directed above and to pass appropriate

order on promotion to the rank of Naib Subedar within a

period of 60 days from the date of passing of this order.

[33] There will be no order as to costs.

MEMBER (A) MEMBER (J)

Mishra

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